Citation Nr: 1821701 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-29 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from November 2002 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was previously before the Board in December 2016 when it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he currently has an acquired psychiatric disorder, including PTSD, which he attributes to his military service. In June 2016, and throughout the record, the Veteran stated that he experienced numerous personal assaults, both physical and sexual, before entering the military. The Veteran has reiterated this past history of abuse throughout the record. Additionally, the Veteran asserts that in January 2004, while in service, he was involved in a physical altercation with his civilian girlfriend, in which she struck him repeatedly and attacked him with a high heeled shoe. Service treatment records (STRs) and the Veteran's separation examination report are silent for any psychiatric treatment or symptoms. STRs show the Veteran did complete a substance abuse re-orientation program in October 2013, but there was no diagnosis of alcoholism or drug abuse. The Veteran's DD Form 214 indicates he was separated from service under honorable conditions for misconduct. The Veteran's assertion of a physical assault is corroborated by the April 2004 memorandum recommending discharge, which cites the physical assault incident as a basis for discharge. While the Board acknowledges inconsistencies between the Veteran's statements and personnel records as to whom was at fault for the incident, the Board is satisfied that there is competent evidence of an event in service. Pursuant to the Board's December 2016 remand, the Veteran underwent a VA examination in August 2017. The examiner noted that the Veteran was currently diagnosed with moderate alcohol use disorder and mild unspecified anxiety disorder. The examiner opined that the Veteran did not meet the criteria for the diagnosis for PTSD. The examiner stated that the Veteran claimed that his emotional distress was due to physical and sexual abuse that occurred in late childhood and adolescence and that the Veteran did not consistently claim a symptoms pattern that would identify PTSD. Additionally, the examiner noted that previous evaluators had mentioned the need to rule out PTSD, "most likely because anxiety was involved or the Veteran claimed PTSD." However, the examiner also stated that no evaluator actually diagnosed PTSD and the current evaluation ruled out the disorder. The Board finds the examiner's opinion with respect to PTSD to be adequate. However, to the extent the examiner diagnosed anxiety disorder, the examiner opined that this condition was less likely than not related to the Veteran's military service. The examiner explained that the Veteran stated that his anxiety disorder was established when he was a youth exposed to physical and sexual abuse, and not to any event associated with his military service or physical assault therein. Additionally the examiner stated that the Veteran's alcohol use developed over time and was not associated with any event associated with his military service. Although the examiner stated that the Veteran's mental health issues began before his military service, he did not opine as to whether the Veteran's military service aggravated any pre-existing acquired psychiatric disorder. Therefore, the Board finds that another medical examination and opinion is necessary. Specifically, on remand, the examiner must discuss whether or not any diagnosed acquired psychiatric disorder is related to his military service and whether or not his military service aggravated any preexisting acquired psychiatric disorder. Accordingly, the case is REMANDED for the following actions: 1. Forward a copy of the Veteran's claims file, to include a copy of this Remand, to an appropriate examiner to provide an opinion as to the nature and etiology of any acquired psychiatric disorder present during the appeal period. If is determined that a physical examination is necessary to provide the requested opinions, such should be scheduled. The examiner must first identify all diagnosed acquired psychiatric disorders present during the period of the claim (from January 2013 to the present), to include, but not limited to PTSD, depression, and anxiety. If the examiner disagrees with any diagnosis previously recorded in any treatment record/examination report, an explanation should be provided for the record. After reviewing the record, to include the Veteran's statements discussing pre-service assaults and an in-service physical altercation with a girlfriend, the examiner is asked to address the following with regard to each acquired psychiatric disorder diagnosed during the period of the claim: a. Whether the evidence clearly and unmistakably establishes that any diagnosed acquired psychiatric disorders existed prior to the Veteran's active service. b. If the examiner determines any diagnosed acquired psychiatric disorders did clearly and unmistakably exist prior to the Veteran's active service, the examiner must determine whether it was clearly and unmistakably not aggravated by his active duty service. In other words, is any increase clearly and unmistakably due to the natural progression of the disability? In addressing this question, the examiner should consider the Veteran's January 2018 correspondence in which he stated that although he was assaulted as a child, he did not start experiencing any symptoms until his time in the military after being assaulted and that the progression of his illness had only worsened since that time. c. If the examiner determines that the Veteran's acquired psychiatric disorders did not clearly and unmistakably exist prior to service, or was not clearly and unmistakably not aggravated by his active duty -service, the examiner must determine whether it is at least as likely as not (50 percent or greater degree of probability) that it began during active duty service, was caused by service, or is otherwise related to active duty service. The examiner is instructed that clearly and unmistakably requires that the evidence be obvious, manifest, and undebatable. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary. 3. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).